ROGERS v. NJDOC

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW JERSEY

CAMDEN VICINAGE

MARTIN LUTHER ROGERS, :

: Civ. No. 15-7005(RMB-MJS)

Plaintiff :

:

v. : OPINION

:

NJDOC, et al., :

:

Defendants :

APPEARANCES:

CHARLES HARRY LANDESMAN, Esq.

Law, Froelich & Landesman

P.O. Box 474

Hillsdale, NJ 07032

On behalf of Plaintiff

KAI WENDELL MARSHALL-OTTO

STEPHANIE D TROTTER, Esq.

Office of the Attorney General

R. J. Hughes Justice Complex

25 Market Street

P.O. Box 112

Trenton, NJ 08625

On behalf of Defendants NJDOC, Robert Buechele, Willie Bonds,

J. Cisrow, J. Kuhlen, E. Velez, K. Castro, Charles Schemelia,

Stephanie Waters, Martel Hunter, Sooy, A. Hernandez, Cowin,

Headley, Gonzalez, Platt

BUMB, United States District Judge

This matter comes before the Court upon the motion for summary

judgment (Defs’ Mot. for Summ. J., Dkt. No. 172) by Defendants New

Jersey Department of Corrections (“NJDOC”), Robert Buechele,

Willie Bonds, J. Cisrow, John Kuhlen, Edwin Velez, Kristen Castro,

Charles Schemelia, Stephanie Waters, Martel Hunter, Danielle Sooy,

Andres Hernandez, William Cowin, Edwin Headley, Rigoberto

Gonzalez, and Casey Piatt (collectively the “DOC Defendants”);

Plaintiff’s brief in opposition to the DOC Defendants’ motion for

summary judgment (“Pl’s Opp. Brief,” Dkt. No. 180); and the DOC

Defendants’ reply brief. (DOC Defs’ Rely Brief, Dkt. No. 185.) The

Court has also addressed the motion for summary judgment by the Medical

Defendants (Dkt. No. 179) in a companion Opinion and Order. For the

reasons discussed below, the Court will grant summary judgment to

the DOC Defendants on Plaintiff’s federal claims and reserve the

issue of supplemental jurisdiction over Plaintiff’s state law claims

pending resolution of the claims against unserved defendants.

I. PROCEDURAL HISTORY

Plaintiff initiated this action pro se by filing a civil

rights complaint on September 22, 2015. (“Compl.” Dkt. No. 1.) The

Court granted Plaintiff’s application to proceed in forma pauperis

under 28 U.S.C. § 1915(a), dismissed certain claims pursuant to §

1915(e)(2)(B), based on immunity and failure to state a claim, and

permitted the remaining claims to proceed. (Opinion and Order,

Dkt. Nos. 5, 6.) After discovery, Plaintiff filed an amended

complaint on March 23, 2018. (“Am. Compl.” Dkt. No. 135.) On

October 11, 2018, Charles H. Landesman, Esq. entered an appearance

as counsel for Plaintiff in this matter. (Letter, Dkt. No. 124.)

After service of the amended complaint on the defendants, on

October 15, 2019, the DOC Defendants filed a motion for judgment

on the pleadings and motion for summary judgment pursuant to Fed.

R. Civ. P. 12(c) and 56 (“DOC Defs’ Mot. for Summ. J.” Dkt. No.

172; “DOC Defs’ Brief” Dkt. No. 172-1; “DOC Defs’ SOMF” Dkt. No.

172-2.) Plaintiff filed a brief in opposition to the DOC

Defendants’ motion on November 26, 2019. (“Pl’s Opp. Brief” Dkt.

No. 180; “Pl’s Responsive SOMF” Dkt. No. 180-1.) On December 26,

2019, the DOC Defendants filed a reply to Plaintiff’s opposition

brief. (DOC Defs’ Reply Brief, Dkt. No. 185.)

II. THE AMENDED COMPLAINT

The allegations in the Amended Complaint, relevant to the DOC

Defendants, are as follows. Plaintiff was incarcerated at South

Woods State Prison (“SWSP”) on June 30, 2014, when he applied for

the “NJSTEP” college program. (Am. Compl. ¶¶32, 33, Dkt. No. 135.)

He was accepted into the program in September 2014. (Id.) On

January 10, 2015, Sergeant J. Cisrow and/or John and Jane Doe

Defendants transferred Plaintiff from a ground-floor cell to a

second-floor cell in a different housing unit, for participation

in the NJSTEP program. (Id., ¶35.) When he was transferred,

Plaintiff learned that his medical restriction for ground-floor

housing had expired. (Id.) Due to his change in housing, he had to

climb stairs, which caused pain in his leg and back, and deprived

him of access to the NJSTEP program, the housing unit phones,

dining hall and recreation on the ground-floor “because he was

unable to travel to or reach said areas before other inmates.”

(Id.)

Plaintiff’s medical ground-floor housing restriction was

renewed on January 13 or 14, 2015, so he asked Velez and Cisrow,

the officers who had moved him on January 10, 2015, to transfer

him to a ground-floor cell. (Am. Compl. ¶39, Dkt. No. 135.) They

told him that they would transfer him to the ground floor after

they finished transferring all the inmates into the NJSTEP unit.

(Id.) Plaintiff remained in his second-floor cell when, on January

16, 2015, Inmate Barlow entered Plaintiff’s unlocked cell and

punched Plaintiff in the face, and punched, kicked and kneed

Plaintiff after he fell on the ground. (Id., ¶40) Officers Castro

and Hernandez arrived and found Plaintiff on the floor of his cell.

(Id., ¶41.) Officer Kuhlen and another officer arrived and told

Plaintiff to kneel and face the back of the cell. (Id.) Plaintiff

was handcuffed and taken to a holding cell. (Id.)

A nurse treated Plaintiff’s injuries while he was in the

holding cell. She asked to have Plaintiff’s handcuffs removed when

he complained they were too tight. (Id., ¶42.) Kuhlen and an

unknown officer returned to the holding cell and applied and

handcuffs and ankle-cuffs while Plaintiff was in a painful

position, and left him alone and cuffed for hours. (Id.) On the

evening of January 16, 2015, Plaintiff was escorted to Temporary

Close Custody (“TCC”) and housed in a ground-floor cell (Id., ¶43.)

On January 27, 2015, Plaintiff was released from TCC to

another housing unit another housing unit, where Officer Schemelia

told him to go to his second-floor cell. (Am. Compl., ¶47, Dkt.

No. 135.) Schemelia did not believe Plaintiff when he said he had a

ground-floor housing restriction because he did not see any

restriction. (Id.) As a result, Plaintiff was forced to climb

stairs, and this limited his access to phones, the dining hall and

recreation on the ground- floor. (Id.) On January 29, 2015, Officer

Waters transferred Plaintiff to a ground-floor cell. (Id., ¶50.)

That same day, using an Inmate Remedy form, Plaintiff asked to

participate in the NJSTEP program. (Id., ¶51.) Waters transferred

Plaintiff to an empty ground-floor cell on January 31, 2015. (Id.,

¶52.)

On February 4, 2015, Plaintiff asked Lieutenant Taylor to

return him to the NJSTEP program. (Id., ¶54.) Taylor told Plaintiff

that he would remain where he was, in Phase II housing where the

program was unavailable, until further notice from the supervisor

of education. (Id.) On February 19, 2015, Plaintiff wrote a

grievance about Waters verbally harassing him. (Id., ¶55.) She

verbally harassed Plaintiff again on February 21, 2015, and

threatened to charge him if he wrote another grievance about her.

Plaintiff wrote the grievance. (Id., ¶56.) Waters retaliated

against Plaintiff by having him moved to another housing area,

Phase I, causing him to change jobs. (Id., ¶57.) Thus, Plaintiff

filed another grievance against Waters. (Id., ¶58.)On July 20,

2015, Officer Hunter heard shouting coming from the law library

and yelled for Plaintiff to get out. (Id., ¶75.) Hunter then saw

Inmate Summers hit Plaintiff in the back of the head from behind.

(Am. Compl. ¶75, Dkt. No. 135.) Plaintiff lost consciousness.

(Id., ¶76.) The next day in the infirmary, Plaintiff received notice

of disciplinary charges against him by Officers Hunter and

Shepard, charging him with being in an unauthorized area and

fighting with Summers. (Id., ¶77.) Plaintiff alleges that Hunter

and Summers wrote false reports about the incident. (Id.,¶79.) On

August 3, 2015, Plaintiff was found guilty of fighting and being

in an unauthorized area. (Id., ¶81.) He was transferred to NSP on

August 13, 2015. (Id., ¶84.)In Counts 14-17, Plaintiff alleges

Administrator Buechele had a policy or custom regarding ground-

floor housing restrictions that violated the Eighth Amendment and

Title II of the Americans with Disabilities Act (“ADA”), and this

policy or custom caused Cisrow, Velez and Schemelia to house

Plaintiff on the second- floor, with deliberate indifference to

his serious medical needs. (Id., ¶¶103-6).1 The Clerk shall

administratively terminate Willie Bonds as a defendant in this

matter because Plaintiff did not name him as a defendant in the

Amended Complaint. (Certification of Kai W. Marshall-Lotto, Esq.

in Supp. of Mot. for Summ. J., Ex. A, ¶3(c) (“Marshall-Otto

Cert.”), Dkt. No. 172-3 at 26.) Further, although Disciplinary

Hearing Officer Christy Ralph was not served with the Amended

Complaint, Plaintiff concedes to dismissal of the Due Process

claim against her [Count 21]. (Pl’s Opp. Brief, Dkt. No. 180 at

24.)In Count 18, Plaintiff alleges Officers Castro, Hernandez,

Kuhlen, Sooy, Cowin, Headley, Gonzalez, Piatt and John and Jane

Does used excessive force against him by handcuffing him too

tightly and leaving him alone that way for a prolonged period of

time. (Am. Comp. ¶107, Dkt. No. 135.)

In Count 19, Plaintiff alleges Waters retaliated against him

for filing grievances by transferring him to a different housing

facility, in violation of the First Amendment and state law. (Id.,

¶108.)

In Count 20, Plaintiff alleges Hunter and Inmate Summers

conspired to use excessive force and write false disciplinary

charges against Plaintiff, in violation of the Eighth and

Fourteenth Amendments, New Jersey Civil Rights Act, and state law.

(Id., ¶109.)

In Count 21, Plaintiff alleged Disciplinary Hearing Office

Christy Ralph violated his Fourteenth Amendment right to due

process, the NJCRA, and state law.

In Count 22, Plaintiff alleges Hunter, Cisrow, Velez,

Schemelia, Kuhlen, Castro, Hernandez, Sooy, Cowin, Headley,

Gonzalez, Piatt and John and Jane Does retaliated against him with

each act taken against him, in violation of the First Amendment,

the NJCRA, and state law. (Id., ¶111.)

In Count 23, Plaintiff alleges that the NJDOC and its

employees excluded him from participation in the NJSTEP program by

reason of his disability, in violation of the Fourteenth Amendment

and Title II of the Americans with Disabilities Act. (Am. Compl.

¶112, Dkt. No. 135.)

In Count 24, Plaintiff alleges the NJDOC Defendants violated

the Eighth Amendment and state law by releasing Inmate Barlow into

the general population, knowing of his history of threats and/or

assaults (Id., ¶113) For relief, Plaintiff seeks damages and

declaratory and injunctive relief. (Id., ¶115.)

III. UNDISPUTED MATERIAL FACTS

Accepted where otherwise indicated, the material facts

discussed below are undisputed. (DOC Defs’ SOMF, Dkt. No. 172-2;

Pl’s Responsive SOMF, Dkt. No. 180-1.)

IV. DISCUSSION

A. Judgment on the Pleadings and Summary Judgment

Standard of Review

Federal Rule of Civil Procedure 12(h)(2)(B) provides that a

defense of failure to state a claim upon which relief can be

granted may be made by a motion for judgment on the pleadings under

Rule 12(c). Turbe v. Gov't of Virgin Islands, 938 F.2d 427, 428

(3d Cir. 1991). The familiar 12(b)(6) standard applies to motions

for judgment on the pleadings for failure to state a claim. Id.

“To survive a motion to dismiss, a complaint must contain

sufficient factual matter, accepted as true, to ‘state a claim to

relief that is plausible on its face.’” Ashcroft v. Iqbal,

556U.S. 662, 678 (2009) (quoting Bell Atlantic Corp. v. Twombly,

550 U.S. 544, 570 (2007)). “A claim has facial plausibility when

the plaintiff pleads factual content that allows the court to draw

the reasonable inference that the defendant is liable for the

misconduct alleged.” Id. (quoting Twombly, 550 U.S. at 556.) Legal

conclusions, together with threadbare recitals of the elements of

a cause of action, do not suffice to state a claim. Id.

Summary Judgment is proper where the moving party “shows that

there is no genuine dispute as to any material fact,” and the

moving party is entitled to judgment as a matter of law. Fed. R.

Civ. P. 56(a); Daubert v. NRA Group, LLC, 861 F.3d 382, 388 (3d

Cir. 2017). The burden then shifts to the nonmovant to show, beyond

the pleadings, “‘that there is a genuine issue for trial.” Id. at

391 (quoting Celotex Corp. v. Catrett, 447 U.S. 317, 324 (1986)

(emphasis in Daubert)). “At the summary judgment stage, facts must

be viewed in the light most favorable to the nonmoving party only

if there is a ‘genuine’ dispute as to those facts.” Scott v.

Harris, 550 U.S. 372, 380 (2007) (citing Fed. Rule Civ. Proc.

56(c)). “‘[A] dispute about a material fact is ‘genuine’ if the

evidence is sufficient to permit a reasonable jury to return a

verdict for the non-moving party.’” Pearson v. Prison Health Serv.,

850 F.3d 526, 534 (3d Cir. 2017) (quoting Lamont v. New Jersey,

637 F.3d 177, 181 (3d Cir. 2011)).

B. Plaintiff Concedes Dismissal of His Conspiracy and Due

Process Claims

The DOC Defendants submit that Plaintiff failed to state a

civil conspiracy claim or a conspiracy claim under 42 U.S.C. §

1985 in the Amended Complaint. (DOC Defs’ Brief, Dkt. No. 172-1 at

47-49.) They also contend that Plaintiff’s due process claim is

barred by Heck v. Humphrey, 512 U.S. 477 (1994). (Id. at 46.)

Plaintiff concedes to dismissal of his conspiracy and due process

claims. (Pl’s Opp. Brief, Dkt. No. 180 at 24.) Therefore, the Court

will grant the DOC Defendants judgment on the pleadings on

Plaintiff’s conspiracy claims and Fourteenth Amendment Due Process

claim, Counts 20 and 21 of the Amended Complaint.

C. Plaintiff Exhausted the Administrative Remedies

Available to him

The DOC Defendants seek summary judgment based on Plaintiff’s

failure to exhaust the administrative remedies at SWSP, as required

by 42 U.S.C. § 1997e(a)(1). (DOC Defs’ Brief, Dkt. No. 172-1 at

14-15.) In opposition, Plaintiff argues that he attempted to

exhaust his administrative remedies but was precluded from doing

so. (Pl’s Opp. Brief, Dkt. No. 180 at 12-13.) In reply, the DOC

Defendants argue that the Court should grant summary judgment for

failure to exhaust administrative remedies because Plaintiff did

not specify, in his grievances, the individual defendants with

whom he had an issue. (DOC Defs’ Reply Brief, Dkt. No. 185 at 4-

1. Standard of Law

It is mandatory for prisoners to exhaust the administrative

remedies available to them before they file civil actions

concerning any aspect of prison life in the federal courts. 42

U.S.C. § 1997e(a)(1); Porter v. Nussle, 534 U.S. 516, 532 (2002)).

The statute requires “proper exhaustion,” which is completion of

each step of the prison’s administrative remedy program in

compliance with the identified procedures. “The level of detail

necessary in a grievance to comply with the grievance procedures

will vary from system to system and claim to claim, but it is the

prison’s requirements, and not the PLRA, that define the boundaries

of proper exhaustion.” Jones v. Bock, 549 U.S. 199, 218 (2007).

However, a prisoner need only exhaust the administrative remedies

that are available to him. Ross v. Blake, 136 S. Ct. 1850, 1854-

55 (2016). An administrative remedy is unavailable where (1) it

operates as a dead end; (2) it is so opaque that it is incapable

of use; and (3) when prison administrators thwart inmates from

taking advantage of the grievance process. Ross, 136 S. Ct. at

1859-60 (2016).

2. SWSP’s Inmate Remedy System

The parties dispute whether Plaintiff properly exhausted his

claims in compliance with SWSP’s remedy procedures, and whether

the remedy system was available to Plaintiff. The Inmate Handbook,

relied on by both parties, provides that if an inmate is unable to

reach informal resolution of an issue, he may file an Inmate Remedy

System form. (“Remedy Form.”) (Certification of Luz Torres

(“Torres Cert.”)2 Ex. A, Dkt. No. 172-5 at 9-10.) Only properly

completed and submitted Remedy Forms will be processed. (Id. at

10.) A Remedy Form that contains more than one issue or does not

contain enough information will not be processed and will be

returned to the inmate. (Id. at 11.) A staff member who receives

an improperly completed form will return the form to the inmate

together with an “Inmate Remedy Corrective Action” form. (Id. at

10.)

The first step in the remedy system is to complete Part I of

the form, without directing the form to a specific person or

department, and drop it in the box marked “Inmate Remedy System

Forms Only,” which are picked up daily. (Id. at 11.) Inmates are

not required to specify the relief they are seeking. (Torres Cert.,

Ex. A, Dkt. No. 172-5 at 8-13.) The Remedy Form must be submitted,

if possible, within ten business days of the date of the issue

that caused the inmate to file the Remedy Form. (Id. at 12.) If

the inmate does not receive a response or if the form is returned

to him within 30 days, the inmate “may submit another Inmate Remedy

System form noting the date the original Inmate Remedy System form

2 Luis Torres is an Executive Assistant at SWSP prison

knowledgeable of their administrative remedy program, as described

in the Inmate Handbook. (Torres Cert. ¶1, Dkt. No. 172-5 at 1.)

was submitted.” (Torres Cert., Ex. A, Dkt. No. 172-5 at 12.) When

an inmate receives an unsatisfactory response, he may appeal by

using the same form that was returned to him and completing Part

4. (Id.) Appeal decisions are rendered by the administrator and

are the final decisions of the correctional facility. (Id.) The

administrator has 10 business days to answer the appeal unless an

extension of time is communicated to the inmate on the “Staff

Response” form. (Id.) SWSP has a Remedy Coordinator (“the

coordinator”) who is responsible for processing the forms and

logging the information into a database at every stage. (Id. at

13.)

The DOC Defendants acknowledge Plaintiff’s deposition

testimony that he submitted grievances about his ground-floor

housing restriction and excessive force allegation, but they point

to Plaintiff’s admission that he did not identify the particular

individuals whom he would later name in the Amended Complaint.

(DOC Defs’ Brief, Dkt. No. 172-1 at 14-15.) The DOC Defendants,

citing to Campoverde v. Lanigan, CV 16-3305 (SDW), 2019 WL 1399554,

at *3 (D.N.J. Mar. 28, 2019), motion for relief from judgment

denied, CV 16-3305 (SDW), 2019 WL 3755963 (D.N.J. Aug. 8, 2019),

contend that Plaintiff failed to exhaust his administrative

remedies because he did not identify the defendants in his

grievances. (DOC Defs’ Brief, Dkt. No. 172-1 at 29.) Further, with

respect to the ground-floor housing restriction, even if Plaintiff

submitted a grievance, the DOC Defendants maintain there was

nothing to exhaust because the issue was resolved when a ground-

floor restriction issued within 96-hours, and Plaintiff did not

submit a grievance for money damages. (DOC Defs’ Brief, Dkt. No.

172-1 at 30.)

In his certification in opposition to summary judgment,

Plaintiff stated that on January 29, 2015, he submitted two

grievance forms. (Certification of Martin Luther Rogers in Supp.

of Responsive SOMF, ¶22 (“Rogers Cert.”) Dkt. No. 180-2.) In the

first grievance, he complained that while he was housed on the

second floor, despite his medical restriction for ground-floor

housing, he was assaulted by another inmate. (Id.) In his second

grievance, he complained about how he was handcuffed too tightly

after being assaulted, and then left handcuffed alone in a holding

cell for hours. (Id.) Plaintiff also submitted a Remedy Form asking

to be returned to the NJSTEP program. (Id.) Plaintiff could not

retain a copy of the forms because they were submitted, as

required, with all copies intact. (Id., ¶¶23, 24) According to the

Inmate Handbook, inmates are not required to name specific

individuals to whom their grievances are directed. (Id., ¶24.)

Plaintiff also stated that on February 19 and 21, he submitted

grievances about harassment by Waters. (Id., ¶27.) On February 26,

Plaintiff submitted a grievance about retaliation by Waters

because she transferred him to different housing after he filed

grievances against her. (DOC Defs’ Brief, Dkt. No. 172-1 at ¶30.)

On March 4 and 5, and April 6, 2015, Plaintiff sent letters to

NJDOC and Office of the Ombudsmen because his grievances were not

answered. (Id., ¶31, Dkt. No. 180-2; Exs. 54-58, Dkt. No. 180-3 at

22-26.) Plaintiff was informed that his correspondence was

forwarded to the Special Investigations Unit and the

administrator. (Id., and Pl’s Ex. 55-57, Dkt. No. 180-2 at 24-26.)

On April 28, 2015, the administrator posted a notice that all

inquiries and remedies would now be paperless, using kiosks for

filing and receiving responses. (Rogers Cert. ¶35, and Ex. 64,

Dkt. No. 180-4 at 3.) Plaintiff states that he had talked to

Lieutenant Taylor about his unanswered grievances before the

remedy system was transferred to the kiosks, and Taylor told him

the remedy system was in disarray. (Id., ¶35.)

Plaintiff also testified about his grievances in his two

depositions. (See Certification of Kai W. Marshall-Otto, Ex. B,

Dkt. No. 172-3 at 82-84, 126-31, 139, 141-42, 157; and Ex. C, Dkt.

No. 172-3 at 189, 202.) Plaintiff explained that he could not fully

exhaust his grievances because the grievances were either ignored

or were repeatedly returned with redirection forms that made no

sense and could not be remedied. Plaintiff believed staff were

attempting to prevent him from exhausting his remedies. That is

why he wrote a letter to the Ombudsmen, but the administrator never

responded after the Ombudsmen forwarded Plaintiff’s complaints to

him. Plaintiff also entered his grievances on the kiosks when SWSP

went to a paperless system a few months after the January 16, 2015

incident.

3. Analysis

The DOC Defendants have not submitted any evidence in

contradiction to Plaintiff’s deposition testimony and his

certification concerning his attempts to exhaust his grievances.

The Court finds that Plaintiff’s grievances encompassed his issues

concerning: (1) his assault by another inmate while housed on the

second-floor on January 16, 2015, which he argues would not have

occurred if he had been housed on the ground floor after his

medical restriction renewal was made known to staff; (2) the manner

in which he was handcuffed by staff and left for hours after he

was assaulted by another inmate on January 16, 2015; and (3)

alleged retaliation by Waters because he filed grievances against

her regarding harassment, and she responded by transferring him to

a different housing unit.

This Court finds that Plaintiff exhausted the administrative

remedies that were available to him by filing these grievances,

and that Plaintiff was, in effect, prevented from completing the

grievance procedure because his grievances were never returned to

him and/or were returned without adequate redirection to allow

him to resubmit and ultimately exhaust his remedies. The Court

also finds that SWSP’s remedy procedure did not require Plaintiff

to name any particular staff person, and if his grievances were

lacking for an investigation to ensue, it was incumbent upon

staff, according to the prison’s remedy system, to return the

grievances with direction on how the Remedy Form was deficient.

(Torres Cert., Ex. A, Dkt. No. 172-5 at 8-13.) Plaintiff has not

submitted evidence that he filed grievances for retaliation by

staff other than Waters; however, as discussed below, Plaintiff

failed to state a retaliation claim against other staff members

in the Amended Complaint. See 42 U.S.C. § 1997e(c)(2) (“(2) “In

the event that a claim … , on its face, … fails to state a claim

upon which relief can be granted … the court may dismiss the

underlying claim without first requiring the exhaustion of

administrative remedies.)

D. Claims Previously Dismissed Pursuant to 28 U.S.C. §

1915(e)(2)(B) Must Be Dismissed Because the Deficiencies

in the Claims Have Not Been Cured in the Amended

Complaint

The DOC Defendants seek dismissal of the following claims,

dismissed upon screening of the original complaint pursuant to 28

U.S.C. § 1915(e)(2)(B) for failure to state a claim and/or Eleventh

Amendment immunity, and were realleged in the Amended Complaint:

a. Claims for damages against

individual DOC Defendants in their

official capacities, and

constitutional claims against the

DOC itself, were dismissed with

prejudice (Dkt. No. 5 at 14-15).

b. Plaintiff’s Eighth Amendment

medical claim against Defendant

Schemelia was dismissed without

prejudice. (Dkt. No. 5 at 18)

c. Plaintiff’s failure to protect

claims against Defendants Castro,

Hunter, and Kuhlen were dismissed

without prejudice. (Dkt. No. 5 at

18-20.)

d. Plaintiff’s retaliation claims were

dismissed without prejudice against

Defendants Kuhlen, Cisrow, Velez,

Castro, Schemelia, Hunter, Ralph,

John Does 1-10, and Jane Does 1-10.

(Dkt. No. 5 at 23-26.)

e. Plaintiff’s Eighth Amendment claim

against Buechele was dismissed

without prejudice.

f. Count 24 is subject to dismissal on

the pleadings because it names only

John/Jane Doe Defendants who have

not subsequently been identified.

In opposition to dismissal of certain of these claims,

Plaintiff submits that he was permitted to proceed with his ADA

claim against Velez and Cisrow in their official capacities

because the true party in interest is the New Jersey Department of

Corrections. (Pl’s Opp. Brief, Dkt. No. 180-1 at 10, citing

Opinion, Dkt No. 5 at 17-31.) Plaintiff further contends that he

has cured the deficiencies in the original complaint for his

claims against Buechele and Schemelia, as well as all of his

excessive force, failure to protect and retaliation claims.

((Pl’s Opp. Brief, Dkt. No. 180-1 at 10.)

In reply, the DOC Defendants seek dismissal of Plaintiff’s

claims against Cowin, Headley, Gonzalez and Hernandez based on

Plaintiff’s admission that he has no evidence supporting his claims

against them. (DOC Defs’ Reply Brief, Dkt No. 185 at 1, citing

Dkt. No. 180-1, ¶48.) Further, as to Plaintiff’s retaliation claim

against Waters, the DOC Defendants submit that Plaintiff’s

certification in opposition to this claim concocts a new factual

theory of the case that contradicts his deposition testimony and

should be barred as a sham affidavit, or alternatively rejected

because Plaintiff failed to amend his deposition testimony to

resolve the contradiction, in the time and manner prescribed by

Federal Rule of Civil Procedure 30(e). (Id. at 2-4.)

1. The claims dismissed with prejudice from the

original complaint based on immunity and failure to

name “a person” liable under § 1983 cannot be

realleged in the Amended Complaint

A plaintiff may not reallege claims in an amended complaint

when those claims were previously dismissed with prejudice. See

e.g. In re Westinghouse Securities Litigation, 90 F.3d 696, 703-4

(3rd Cir. 1996). Therefore, the Court will terminate the § 1983

damages claims against the NJDOC and the DOC Defendants in their

official capacities.

2. Plaintiff failed to state an Eighth Amendment

medical claim under § 1983 against Schemelia in his

amended complaint

The Court dismissed the Eighth Amendment inadequate medical

care claim against Schemelia from the original complaint because

Plaintiff had not alleged facts establishing deliberate

indifference to Plaintiff’s serious medical need. (Opinion, Dkt.

No. 5 at 18.) The DOC Defendants seek judgment on the pleadings,

arguing that Plaintiff repeated the same claim in his amended

complaint without pleading additional facts. (DOC Defs’ Brief,

Dkt. No. 172-1 at 22-24.) Plaintiff alleged in his amended

complaint that when he was released from TCC on January 27, 2015

and transferred to a new housing facility, he informed Schemelia

of his medical restriction for ground-floor housing, but Schemelia

thought Plaintiff was lying because he did not see a medical

restriction. (Am. Compl. ¶47, Dkt. No. 135.) Schemelia directed

Plaintiff to a second-floor cell. (Id.)

Deliberate indifference, the mental state required for an

Eighth Amendment claim based on inadequate medical care in prison,

may be found where a prison official (1) knows of a prisoner's

need for medical treatment but intentionally refuses to provide

it; (2) intentionally delays necessary medical treatment based on

a nonmedical reason; or (3) deliberately prevents a prisoner from

receiving needed medical treatment. Pierce v. Pitkins, 520 F. App'x

64, 66 (3d Cir. 2013) (citing Rouse v. Plantier, 182 F.3d 192, 197

(3d Cir. 1999)). The fact that Schemelia did not believe Plaintiff

had a ground-floor restriction because he did not see a restriction

in the records available to him does not establish deliberate

indifference to Plaintiff’s serious medical need for ground-floor

housing. Plaintiff alleges in his amended complaint that he was

transferred to a ground-floor cell on January 29, 2015, just two

days after this incident, consistent with an inference that

Plaintiff was transferred after staff investigated his claim. (Am.

Compl. ¶50, Dkt. No. 135.) Based on these undisputed facts, a

reasonable juror could not find that Schemelia was deliberately

indifferent to Plaintiff’s medical need for ground-floor housing.

Therefore, the Court will grant judgment on the pleadings to

Schemelia on Plaintiff’s § 1983 claim for violation of the Eighth

Amendment.

3. Plaintiff failed to state an Eighth Amendment

Failure to Protect Claim in the Amended Complaint

Plaintiff asserts that he cured the deficiencies from his

original complaint by alleging additional facts in support of his

Eighth Amendment failure to protect claim against NJDOC officials

in his amended complaint. (Pl’s Opp. Brief, Dkt. No. 180 at 16.)

“To state a claim for damages against a prison official for failure

to protect from inmate violence, an inmate must plead facts that

show (1) he was incarcerated under conditions posing a substantial

risk of serious harm, (2) the official was deliberately indifferent

to that substantial risk to his health and safety, and (3) the

official's deliberate indifference caused him harm.” Bistrian v.

Levi, 696 F.3d 352, 367 (3d Cir. 2012) (citing Farmer v. Brennan,

511 U.S. 825, 834 (1994); Hamilton v. Leavy, 117 F.3d 742, 746

(3rd Cir. 1997.) Prison officials are not liable if

they did not know of the underlying facts

indicating a sufficiently substantial danger

and that they were therefore unaware of a

danger, or that they knew the underlying facts

but believed (albeit unsoundly) that the risk

to which the facts gave rise was insubstantial

or nonexistent.

Bistrian, 696 F.3d at 367 (citing Farmer, 511 U.S. at 844.)

In Count 24 of the Amended Complaint, Plaintiff alleges:

Upon information and belief, NJDOC Defendants,

John/Jane Doe were deliberate[ly] indifferent

and gross[ly] negligent to a substantial risk

of serious harm to Plaintiff, when they

released James Barlow, a mentally-ill and/or

violent-prone inmate, into the general

population after having known of his

threat/assault history in violation of

Plaintiff’s Eighth Amendment rights and

relevant state law.

(Am. Compl. ¶113, Dkt. No. 135.) Plaintiff never amended the

complaint to identify the John/Jane Doe Defendants who released

Inmate Barlow into the general population.

Circumstantial evidence may be sufficient to permit a jury to

find that a defendant had actual knowledge of a substantial risk

if the

plaintiff presents evidence showing that a

substantial risk of inmate attacks was

longstanding, pervasive, well-documented, or

expressly noted by prison officials in the

past, and the circumstances suggest that the

defendant-official being sued had been exposed

to information concerning the risk and thus

must have known about it[.]

Beers-Capitol v. Whetzel, 256 F.3d 120, 131 (3d Cir. 2001) (quoting

Farmer, 511 U.S. at 842–43 (quotation marks and citation omitted

in Beers-Capitol.) Even if Plaintiff had identified the

individuals who classified Inmate Barlow for general population,

Plaintiff’s allegation that staff knew of Barlow’s “threat/assault

history” falls far short of demonstrating a pervasive risk of

inmate attacks posed by Barlow in general population. Plaintiff

did not allege any specific threats or instances of physical

assault by Barlow, when any such incidents occurred, or how many

incidents occurred. Therefore, the Court will grant judgment on

the pleadings to the NJDOC Defendants on Plaintiff’s Eighth

Amendment failure to protect claim under § 1983.

4. Plaintiff failed to state a First Amendment

retaliation claim under § 1983 against Defendants

Kuhlen, Cisrow, Velez, Castro, Schemelia, Hunter,

Ralph, and John and Jane Does

In Count 22 of the Amended Complaint, Plaintiff alleges, upon

information and belief, that Officers Ralph, Hunter, Cisrow,

Velez, Schemelia, Kuhlen, Castro, Hernandez, Sooy, Cowin, Headley,

Gonzalez, Piatt and John and Jane Doe Defendants violated the First

Amendment, the NJCRA, and state law by retaliating against

Plaintiff with each and every action alleged in the Amended

Complaint. (Am. Compl. ¶111, Dkt. No. 135.) In dismissing these

retaliation claims from the original complaint, the Court

explained that “[n]othing in the complaint reasonably suggests

[the NJDOC officers] knew about Plaintiff’s lawsuit prior to any

of their alleged [retaliatory] actions, or that those actions were

substantially motivated by the filing of the lawsuit or Plaintiff’s

grievances.” (Opinion, Dkt. No. 5 at 25.) Plaintiff has not alleged

additional facts in the Amended Complaint to create a reasonable

inference that any of the named DOC or John and Jane Doe Defendants

were aware of a grievance or lawsuit filed by Plaintiff, and that

their alleged actions against Plaintiff were motivated by

Plaintiff’s grievances or lawsuit. See Rauser v. Horn, 241 F.3d

330, 333 (3d Cir. 2001) (“a prisoner-plaintiff in a retaliation

case must prove that the conduct which led to the alleged

retaliation was constitutionally protected.”) Therefore, the Court

will grant judgment on the pleadings to the DOC Defendants and

John and Jane Does on the First Amendment retaliation claims under

§ 1983.3

5. Plaintiff failed to state an Eighth Amendment

claim against Buechele based on a deficient

medical restriction policy or practice

Plaintiff alleged in Count 14 of the Amended Complaint,

“Defendant, Administrator Robert Buechele, had a policy or custom

3 As to unserved defendants, dismissal is pursuant to 28 U.S.C. §

1915(e)(2)(B), which permits district courts to screen a complaint

of a plaintiff who was granted permission to proceed without

prepayment of the filing fee, and at any time, sua sponte dismiss

claims that fail to state a claim upon which relief may be granted.

regarding housing and ground floor restrictions, which violated

Plaintiff’s Eighth-amendment rights, Title II of ADA and relevant

state law.” (Am. Compl. ¶103, Dkt. No. 135.) Plaintiff further

alleged that the policy or custom caused Officers Cisrow, Velez

and Schemelia to house Plaintiff on the second floor. (Id., ¶104.)

Plaintiff did not identify the nature of the alleged policy or

custom in his amended complaint.

Supervisors are not vicariously liable for the constitutional

violations of their employees. Iqbal, 556 U.S. at 676. “To hold a

supervisor liable for … an Eighth Amendment violation, the

plaintiff must identify a supervisory policy or procedure that the

supervisor defendant failed to implement, and prove that: (1) the

policy or procedures in effect at the time of the alleged injury

created an unreasonable risk of a constitutional violation; (2)

the defendant-official was aware that the policy created an

unreasonable risk; (3) the defendant was indifferent to that risk;

and (4) the constitutional injury was caused by the failure to

implement the supervisory procedure. Barkes v. First Corr. Med.,

Inc., 766 F.3d 307, 330 (3d Cir. 2014), reversed on other grounds

by Taylor v. Barkes, 575 U.S. 822 (2015) (citing Brown v.

Muhlenberg Tp., 269 F.3d 205, 216 (3d Cir. 2001) (discussing Sample

v. Diecks, 885 F.2d 1099, 1118 (3d Cir. 1989)).

Plaintiff did not identify a supervisory policy or procedure

by Buechele that caused NJDOC employees to house Plaintiff in a

second-floor cell while he had a ground-floor medical housing

restriction, nor did Plaintiff identify a policy or procedure that

Buchele failed to implement which caused correctional staff to

house him in a second-floor cell. “[I]t is not enough for a

plaintiff to argue that the constitutionally cognizable injury

would not have occurred if the superior had done more than he or

she did. The district court must insist that [the plaintiff]

identify specifically what it is that [the supervisory official]

failed to do that evidences his deliberate indifference.” Sample

v. Diecks, 885 F.2d 1099, 1118 (3d Cir. 1989). Therefore, Plaintiff

has failed to state an Eighth Amendment claim under § 1983 against

Buechele for a deficient policy concerning ground-floor housing

restrictions.

E. The DOC Defendants are Entitled to Summary Judgment on

Plaintiff’s First Amendment Retaliation Claim against

Waters

Plaintiff alleges that Office Waters transferred him to a new

housing unit in retaliation for him filing grievances against her.

(Am. Compl. ¶108, Dkt. No. 135.) The DOC Defendants argue that

because Rogers testified in his deposition that the warden directed

Waters to transfer Plaintiff to another unit, the transfer could

not have been retaliatory on her part. (DOC Def’s Brief, Dkt. No.

172-1 at 45, citing Marshall-Otto Cert., Ex. B, Dkt. No. 172-3 at

138-39.) In opposition to summary judgment, Rogers claims that he

said “Waters” not “Warden” ordered his transfer. (Rogers Cert. ¶

28, Dkt. No. 180-2 at 7.) Because the deposition testimony was

given years ago and Rogers failed to correct his deposition

testimony in a timely fashion, the DOC Defendants reply that the

Court should grant summary judgment to Waters for failure to submit

evidence in support of the claim. (DOC Defs’ Reply Brief, Dkt. No.

185 at 2-4.)

Federal Rule of Civil Procedure 30(e), governing depositions,

provides that:

(e) Review by the Witness; Changes.

(1) Review; Statement of Changes. On

request by the deponent or a party before

the deposition is completed, the deponent

must be allowed 30 days after being

notified by the officer that the

transcript or recording is available in

which:

(A) to review the transcript or

recording; and

(B) if there are changes in form or

substance, to sign a statement

listing the changes and the reasons

for making them.

(2) Changes Indicated in the Officer's

Certificate. The officer must note in the

certificate prescribed by Rule 30(f)(1)

whether a review was requested and, if

so, must attach any changes the deponent

makes during the 30-day period.

The Third Circuit has held that when a district court reviews a

motion for summary judgment, it “does not abuse its discretion

under Rule 30(e) when it refuses to consider proposed substantive

changes that materially contradict prior deposition testimony, if

the party proffering the changes fails to provide sufficient

justification.” EBC, Inc. v. Clark Bldg. Sys., Inc., 618 F.3d 253,

268 (3d Cir. 2010).

In opposition to the DOC Defendants’ motion for summary

judgment, Plaintiff submits that on February 25, 2015 an inmate

wing representative told him that “Waters” said to pack it up, and

he never said the word “warden.” (Rogers Cert. ¶28, Dkt. No. 180-

2.) The deposition transcript says “warden” and Plaintiff has not

given any explanation for why he did not timely correct his

deposition testimony. (Marshall-Otto Cert., Ex. B, Dkt. No. 172-3

at 138.) Moreover, even if Plaintiff had timely corrected his

deposition testimony to read “Waters told me to tell you to pack

it up,” he also testified that “they moved me to Phase I,” which

does not appear to refer to Waters. (Marshall-Otto Cert., Ex. B,

Dkt. No. 172-3 at 138.) The reason Plaintiff gave for concluding

that it was Waters who decided to transfer him was that none of

his grievances against her were returned. (Id. at 139.) Plaintiff,

however, testified that none of his grievances about any issue

were returned to him with a written response. The evidence would

not permit a reasonable juror to conclude that it was Waters who

decided to transfer Plaintiff to another housing unit, and that

she did so in retaliation for him filing grievances against her.

Therefore, the Court will grant summary judgment to Waters on

Plaintiff’s First Amendment retaliation claim under § 1983.

F. The DOC Defendants are Entitled to Qualified Immunity

on Plaintiff’s Excessive Force Claims

The DOC Defendants seek summary judgment on Plaintiff’s

Eighth Amendment excessive force claims for failure to establish

force was used maliciously or sadistically; alternatively, they

seek qualified immunity. Defendants contend that even if the lesser

standard of excessive force in the Fourth Amendment context is

applied, the Third Circuit requires more than discomfort and minor

injury to make out an excessive force claim based on handcuffing.

(DOC Def’s Brief, Dkt. No. 172-1 at 35, n. 2, citing Graham-Smith

v. Wilkes-Barre Police Dep't, 739 F. App'x 727, 732 (3d Cir.

2018)). Defendants argue that in the Third Circuit excessive force

claims based on handcuffing fail when the handcuffing occurred for

reasons of institutional safety and security. Id. (citing Fears v.

Beard, 532 Fed. Appx. 78, 82 (3d Cir. 2013). Defendants submit it

is undisputed that handcuffs and leg shackles were used on

Plaintiff in the immediate aftermath of a violent altercation under

circumstances where they could not have known whether Plaintiff

was the aggressor or an equal participant. (DOC Defs’ SOMF ¶¶31-

50, Dkt. No. 172-2.) Therefore, until he could be placed in a close

custody cell, he was restrained. Id.

In opposition, Plaintiff submits that he has evidence

establishing that Defendants handcuffed him in a manner to cause

injury to his wrist, and they left him alone and handcuffed for

nearly three hours. (Pl’s Opp. Brief, Dkt. No. 180 at 15-16, citing

Rogers’ Cert ¶¶13-16, Dkt. No. 180-2.) The DOC Defendants respond

that Plaintiff has not rebutted their claim for qualified immunity

by citing to clearly established law in support of his Eighth

Amendment excessive force claims. (DOC Defs’ Reply Brief, Dkt. No.

185 at 6-7.)

1. Elements of Eighth Amendment excessive force claim

Analysis of an Eighth Amendment excessive force claim turns

on “‘whether force was applied in a good faith effort to maintain

or restore discipline or maliciously and sadistically for the very

purpose of causing harm.’” Giles v. Kearney, 571 F.3d 318, 326 (3d

Cir. 2009) (quoting Whitley v. Albers, 475 U.S. 312, 319 (1986)).

To make this determination, courts consider:

(1) the need for the application of force; (2)

the relationship between the need and the

amount of force that was used; (3) the extent

of injury inflicted; (4) the extent of the

threat to the safety of staff and inmates, as

reasonably perceived by the responsible

officials on the basis of the facts known to

them; and (5) any efforts made to temper the

severity of a forceful response.

Id.

2. Qualified Immunity Standard of Law

“The doctrine of qualified immunity … insulates government

officials from lawsuits, shielding them ‘from undue interference

with their duties and from potentially disabling threats of

liability.’” Karns v. Shanahan, 879 F.3d 504, 520 (3d Cir. 2018)

(quoting Wright v. City of Philadelphia, 409 F.3d 595, 599 (3d

Cir. 2005) (quoting Elder v. Holloway, 510 U.S. 510, 514 (1994)).

There are two prongs to the qualified immunity analysis that can

be addressed in any order, and “failure of either prong will result

in application of qualified immunity[.]” Id. (quoting James v.

City of Wilkes–Barre, 700 F.3d 675, 679 (3d Cir. 2012)). The two

prongs are “whether the facts alleged … or shown … ‘make out a

violation of a constitutional right’” id. (quoting Pearson v.

Callahan, 555 U.S. 223, 232 (2009), and “whether the right at issue

was ‘clearly established’ at the time of defendants’ alleged

misconduct.” Id. (quoting Saucier v. Katz, 533 U.S. 194, 201

(2001)). “A right is ‘clearly established’ when its ‘contours ...

[are] sufficiently clear that a reasonable official would

understand that what he is doing violates that right.’” Id.

(quoting Wilson v. Layne, 526 U.S. 603, 615 (1999) (quotation marks

omitted in Karns). The Supreme Court has not yet decided whether

a court of appeals decision may constitute clearly established law

for purposes of qualified immunity. City of Escondido, Cal. v.

Emmons, 139 S. Ct. 500, 503 (2019) (citations omitted). The Supreme

Court explained how to address the clearly established law prong

of the qualified immunity analysis:

[W]e have stressed the need to identify a case

where an officer acting under similar

circumstances was held to have violated the

[Constitution] .... While there does not have

to be a case directly on point, existing

precedent must place the lawfulness of the

particular [action] beyond debate. Of

course, there can be the rare obvious case,

where the unlawfulness of the officer's

conduct is sufficiently clear even though

existing precedent does not address similar

circumstances.... But a body of relevant case

law is usually necessary to clearly establish

the answer....

Emmons, 139 S. Ct. at 504 (quoting District of Columbia v. Wesby,

138 S. Ct. 577, 581 (2018) (internal quotation marks omitted)).

3. Analysis

In his certification in opposition to summary judgment on his

Eighth Amendment excessive force claims, Plaintiff describes the

incident as follows. On January 16, 2015, Inmate Barlow entered

Plaintiff’s cell and assaulted Plaintiff. (Rogers Cert. ¶11, Dkt.

No. 180-2.) Officer Kuhlen approached the cell and told Plaintiff

to get on his knees, and Plaintiff complied. (Id., ¶12.) Kuhlen

entered the cell and told Plaintiff to face the back wall, and a

few second later more officers entered the cell and began to pull

on Plaintiff’s arms to handcuff him. (Id.) Gonzalez admitted to

placing the handcuffs on Plaintiff’s wrists. (Rogers Cert. ¶13,

Dkt. No. 180-2.) Plaintiff was escorted to a holding cell. He

complained to the nurse that treated his injuries that his

handcuffs were too tight, and the nurse asked the officers to

remove the handcuffs. (Id., ¶14.) When the handcuffs were

removed, an injury to Plaintiff’s left wrist could be seen by

Plaintiff, the nurse, Kuhlen and an unidentified officer (Id.)

After the nurse treated Plaintiff’s injuries, Kuhlen and an

unidentified officer returned to the holding cell and applied

hand and ankle cuffs to Plaintiff “in a torturous manner.” (Id.,

¶15.) Gonzalez is the only defendant who admitted he assisted in

handcuffing Plaintiff. (Id., ¶16.) Plaintiff was left shackled in

the holding cell for nearly three hours until he was transferred

to TCC. (Id., ¶15.)

In Plaintiff’s deposition, he testified that the tight

handcuffs caused a scrape with a small amount of bleeding.

(Marshall-Otto Cert., Ex. B, Dkt. No. 172-3 at 153.) The treating

nurse said the handcuffs were too tight because Plaintiff was a

large person who required two handcuffs, but the officers walked

out after removing the cuffs. (Marshall-Otto Cert., Ex. B, Dkt.

No. 172-3 at 153.) Plaintiff had not complained about the cuffs

being too tight until he spoke to the nurse, because he was in

pain all over from the assault by another inmate. (Id. at 154.)

Plaintiff also testified that when he was hand and ankle-cuffed

after he received medical treatment, the officers handled him

roughly because Plaintiff said he could not kneel on a metal bench

due to a knee injury. (Marshall-Otto Cert., Ex. B, Dkt. No. 172-3

at 155.) The handcuffs were applied more loosely, but two handcuffs

were not used, as the nurse proposed. (Id. at 156.)

The first three factors used to determine whether force was

excessive suggest that it was not, because the undisputed

evidence demonstrates that there was a need to handcuff Plaintiff

because he was involved in a violent altercation with another

inmate and staff were unaware of who the aggressor was, the force

was limited to applying the handcuffs, and the injury was slight,

a scraped wrist. The Eighth Amendment handcuff cases cited by the

defendants, while not precedential, are relevant to the

evidentiary weight given to the extent of injury caused by the

alleged excessive force. See Fears, 532 Fed. Appx. at 79-80 (3d

Cir. 2013) (holding tight handcuffing was not unreasonable where

prisoner was handcuffed for travel from recreation to the housing

unit for institutional safety, and did not tell officers the tight

handcuffs, which caused a scratch, were causing him pain); Graham-

Smith, 739 F. App'x at 732 (holding that where an officer was

required to remove an unwilling person from a public place,

handcuffing that caused superficial laceration was not excessive

force). The fifth factor, actions taken to temper the severity of

the response, also supports the reasonableness of force here, the

handcuffs were applied in a looser fashion after Plaintiff was

medically treated but before he was taken to TCC. Only the fourth

factor weighs in favor of finding excessive force, Plaintiff was

left alone for nearly three hours while handcuffed in a holding

cell. Plaintiff did not pose a danger to anyone while alone in the

holding cell. However, based on the violent altercation Plaintiff

was part of and staff’s lack of knowledge concerning the incident,

it was reasonable believe Plaintiff might remain aggressive for

some period of time after the fight, although he was compliant for

medical treatment without officers present. That leaves only the

issue of whether it was reasonable to leave Plaintiff with his

hands and ankles shackled while alone for nearly three hours. The

Court will grant qualified immunity to the DOC Defendants on this

issue because, as discussed below, precedent does not clearly

establish that handcuffing under these circumstances violates the

Eighth Amendment.

Plaintiff has not identified any clearly established

precedent, similar to the circumstances alleged here, where the

Supreme Court or the Third Circuit has found the manner of

handcuffing to violate the Eighth Amendment. While the Supreme

Court, in Hope v. Pelzer, 536 U.S. 730 (2002), acknowledged that

an Eighth Amendment violation can be obvious, precluding the need

for clearly established law to put defendants on notice, the facts

in that case were extreme. A prisoner was involved in a “wrestling

match” with officers after a verbal altercation, and he was

handcuffed and returned to the prison from a worksite by bus. Id.

at 734-35. At the prison, he was handcuffed to a hitching post

outdoors, wearing leg irons and without a shirt. He was left in

the baking sun for nearly seven hours, while being taunted about

his thirst. He posed no danger to anyone. Id. This was an obvious

Eighth Amendment violation.

In Young v. Martin, the Third Circuit discussed the standard

described by the Supreme Court in Hope;

[a]s applied to mechanical restraints, the

Supreme Court in Hope identified particular

criteria relevant to the use of excessive

force test, holding that (1) where the inmate

had “already been subdued, handcuffed, [and]

placed in leg irons,” and (2) there was a

“clear lack of an emergency situation” such

that “[a]ny safety concerns had long since

abated,” then (3) subjecting the inmate to

“substantial risk of physical harm” and

“unnecessary pain” serves no penological

justification.

Young v. Martin, 801 F.3d 172, 180 (3d Cir. 2015) (quoting Hope,

536 U.S. at 738; additional citations omitted). In Young, the

following facts were sufficient to be submitted to a jury on an

Eighth Amendment claim:

Young only left his cell because a CO

inadvertently opened his cell door—far from a

prison break; the incident lasted a mere seven

minutes, during which two COs chatted and

laughed while they watched the scene unfold;

and Young voluntarily complied with the COs'

instructions within that short time frame. The

COs then removed Young, shackled and subdued,

from the common area and subjected him in a

more controlled space to a prone strip search

without resistance … Yet the COs and prison

officials not only placed Young in the

restraint chair but did so for nearly fourteen

hours, far exceeding the eight-hour maximum

permitted without special authorization. … At

the outset, Young's restraints were so tight

that he cried out in pain, and during the

extended period he remained in the restraint

chair, Young was naked, with his genitals

partially exposed and an air conditioner

blowing cold air on him. When he was finally

released from this extreme confinement, Young

was shaking uncontrollably and complained that

he was “cold down to his bones.” J.A. 287. His

legs, numb from the restricted position his

body was forced to endure over fourteen hours,

could no longer hold his weight and he had to

be wheeled back to the RHU.

Young, 801 F.3d at 181-83 (3d Cir. 2015). In Young, the parties

had not adequately briefed the qualified immunity issue on appeal,

and the District Court had not addressed it, therefore, the issue

of qualified immunity was remanded. Plaintiff’s circumstances here

were not nearly as extreme as those in Hope and Young. Therefore,

the Court finds that clearly established law did not put the DOC

Defendants on notice that leaving Plaintiff hand and ankle-cuffed

alone in a holding cell for three hours, shortly after his

involvement in a violent altercation with another inmate, violated

the Eighth Amendment, and the Court will grant summary judgment,

based on qualified immunity, to the DOC Defendants on the Eighth

Amendment excessive force claims under § 1983.

G. Velez and Cisrow are Entitled to Qualified Immunity on

Plaintiff’s Eighth Amendment Inadequate Medical Care

Claims

In Count 16 of his amended complaint, Plaintiff alleges Velez

and Cisrow were deliberately indifferent to Plaintiff’s serious

medical needs by failing to house him on the ground floor. (Am.

Compl. ¶105, Dkt. No. 135.) The DOC Defendants seek qualified

immunity on Plaintiff’s Eighth Amendment claims because Plaintiff

failed to identify clearly established law demonstrating that it

violates the Eighth Amendment to delay, by 96 hours, transferring

an inmate to a ground-floor cell based on a recently renewed

medical restriction, where the administrator stated transfers

should be made “as soon as operationally possible.” (DOC Defs’

Reply Brief, Dkt. No. 185 at 6, citing Pl’s SOMF ¶20, Dkt. No.

180-1.) Defendants submit there is no evidence that Cisrow and

Velez acted with deliberate indifference because there is no

evidence that a short delay in his transfer would cause him serious

medical harm. (DOC Defs’ Brief, Dkt. No. 172-1 at 16.) In

opposition to summary judgment, Plaintiff submits that as a result

of Cisrow and Velez’s delay in transferring him to a ground-floor

cell, he suffered pain in his leg and back when he was forced to

climb stairs. (Pl’s Opp. Brief, Dkt. No. 180 at 18.) Plaintiff

argues that a defendant’s mental state is typically a jury issue,

not properly addressed on summary judgment. (Id.)

Here, there is an absence of evidence that Cisrow and Velez

were on notice that any delay in transferring Plaintiff would cause

him medical harm or undue pain and suffering that could not be

alleviated with pain medication. When Velez and/or Cisrow told

Plaintiff he would not immediately be transferred to a ground-

floor cell because they were busy moving all of the inmates for

the NJSTEP program, Plaintiff testified in his deposition that he

did not complain to them because he assumed they would move him

very soon. (Marshall-Otto Cert., Ex. B, Dkt. No. 172-3 at 70-71.)

There is no evidence that Plaintiff sought assistance from medical

staff to treat his ground-floor restriction as a medical emergency

or even priority over other prisoner cell transfers. The Court

finds that a reasonable jury could not find Cisrow and Velez were

deliberately indifferent to Plaintiff’s serious medical need by

delaying his transfer to a ground-floor cell for 96 hours, based

on the undisputed facts in the record.

Moreover, Defendants are entitled to qualified immunity if

clearly established law did not put the defendants on notice that

their conduct violated the Eighth Amendment. Delay in providing

prescribed medical care for non-medical reasons, as a general rule,

may constitute an Eighth Amendment violation. Rouse, 182 F.3d at

197. The Supreme Court, however, has repeatedly directed the lower

courts “not to define clearly established law at a high level of

generality.” Mullenix v. Luna, 577 U.S. 7, 12 (2015) (quoting

Ashcroft v. al–Kidd, 563 U.S. 731, 742 (2011)). The parties have

not cited, nor can the Court find any Supreme Court or Circuit

Court cases that established an Eighth Amendment violation under

facts similar to those presented here.

Under a somewhat similar scenario involving the failure to

honor a prisoner’s four-year old lower-bunk medical restriction

while the prisoner was in segregation, the Third Circuit, in a

nonprecedential opinion, held that prison officials were not

deliberately indifferent to a prisoner’s need “for a bottom bunk

restriction as a result of, perhaps, their mere negligence in

searching his prison file, especially where his [current] treating

physician was of the opinion that no such restriction was medically

necessary.” Bowman v. Mazur, 435 F. App'x 82, 85 (3d Cir. 2011).

Therefore, Cisrow and Velez are entitled to qualified immunity,

and the Court will grant the DOC Defendants’ motion for summary

judgment on the § 1983 claim in Count 16 of the Amended Complaint.

H. The DOC Defendants are Entitled to Summary Judgment on

Plaintiff’s ADA Claim

The DOC Defendants seek summary judgment on Plaintiff’s ADA

claims, arguing there is no evidence that Plaintiff was excluded

from the benefits of services, programs or activities of a public

entity with deliberate indifference. (DOC Defs’ Brief, Dkt. No.

172-1 at 41-43.) They assert it is undisputed that Plaintiff was

initially housed on the second floor for several days because his

ground-floor restriction from the medical department was expired,

and later for a few more days because the officer on the unit did

not have any record of the ground-floor restriction. (DOC Defs’

Brief, Dkt. No. 172-1 at 41-43.) These facts, they contend, do no

demonstrate deliberate indifference by the defendants. (Id.)

In opposition to summary judgment, Plaintiff does not dispute

the facts asserted by the DOC Defendants, but contends he should

survive summary judgment on his ADA claims because Velez and Cisrow

placed him in a second-floor cell when he had been housed in a

first-floor cell for years due to a medical restriction, and

Schemelia placed him in a second-floor cell only because he

believed Plaintiff was lying about his medical restriction. (Pl’s

Opp. Brief, Dkt. No. 180 at 19-21.)

1. Standard of Law

The ADA does not create private causes of action against

individuals.4 See Bowens v. Wetzel, 674 F. App'x 133, 136 (3d

Cir. 2017) (“the District Court could have properly followed the

holdings of those circuits which have concluded that there is no

individual damages liability under Title II of the ADA”) (citing

Garcia v. S.U.N.Y. Health Scis. Ctr. of Brooklyn, 280 F.3d 98, 107

(2d Cir. 2001); Alsbrook v. City of Maumelle, 184 F.3d 999, 1005

n.8 (8th Cir. 1999) (en banc)). Under Title II of the ADA, “no

qualified individual with a disability shall, by reason of such

disability, be excluded from participation in or be denied the

4 The Third Circuit has not addressed this issue in a precedential

opinion but has stated in a nonprecedential opinion that state

employees in their individual capacities are not “public entities”

as defined under Title II of the ADA. See Bowens, 674 F. App'x at

136 (“Bowens has sued state employees in their individual

capacities, not any ‘public entity’ as the statute requires”).

benefits of the services, programs, or activities of a public

entity, or be subjected to discrimination by any such entity.” 42

U.S.C. § 12132.

To state a claim under Title II of the ADA, 42 U.S.C. § 12123,

a plaintiff must allege that he “is a qualified individual with a

disability, who was precluded from participating in a program,

service, or activity, or otherwise was subject to discrimination,

by reason of his disability.” Furgess v. Pennsylvania Dep't of

Corr., 933 F.3d 285, 288–89 (3d Cir. 2019). “State prisons fall

squarely within the statutory definition of ‘public entity,’ which

includes ‘any department, agency, special purpose district, or

other instrumentality of a State or States or local government.’”

Pennsylvania Dep't of Corr. v. Yeskey, 524 U.S. 206, 210 (1998)

(quoting § 12131(1)(B)). “Modern prisons provide inmates with many

recreational ‘activities,’ medical ‘services,’ and educational and

vocational ‘programs,’ all of which at least theoretically

‘benefit’ the prisoners (and any of which disabled prisoners could

be ‘excluded from participation in’).” Yeskey, 524 U.S. at 210.

However, where an ADA claim is brought for compensatory damages,

to succeed on such a claim in the Third Circuit, a plaintiff must

establish an additional element, that defendants acted with

deliberate indifference. S.H. ex rel. Durrell v. Lower Merion Sch.

Dist., 729 F.3d 248, 263 (3d Cir. 2013) (“We … hold that a showing

of deliberate indifference may satisfy a claim for compensatory

damages under § 504 of the RA and § 202 of the ADA.”) Deliberate

indifference is satisfied by evidence that shows: “(1) knowledge

that a federally protected right is substantially likely to be

violated … and (2) failure to act despite that knowledge.” Id. at

265 (citation omitted).

2. Analysis

The ADA claims against Cisrow, Velez and Schemelia in their

official capacities, where the real party in interest is the NJDO,

are treated as claims against the NJDOC. (Opinion, Dkt. No. 5 at

31.) Although the Amended Complaint contains a claim for injunctive

relief, which does not require a showing of deliberate

indifference, the claim for injunctive relief is moot because

Plaintiff has been housed in a ground-floor cell since January 29,

2015, and he was transferred out of SWSP in August 2015. (See

generally Am. Compl., Dkt. No. 135.) “[T]he central question of

all mootness problems is whether changes in circumstances that

prevailed at the beginning of the litigation have forestalled any

occasion for meaningful relief.”) Williams v. Sec'y Pennsylvania

Dep't of Corr., 447 F. App'x 399, 402 (3d Cir. 2011) (citing Jersey

Cent. Power & Light Co. v. New Jersey, 772 F.2d 35, 39 (3d Cir.

1985)). The Court dismissed Plaintiff’s request for injunctive

relief from the original complaint because it was moot. (Opinion,

Dkt. No. 5 at .) Absent the claim for injunctive relief, when a

plaintiff seeks compensatory damages under Title II of the ADA,

there is an additional requirement that Plaintiff establish

deliberate indifference.

The undisputed facts would not allow a reasonable juror to

conclude that Velez, Cisrow or Schemelia knew that housing

Plaintiff in a second-floor cell would deprive him of “the benefits

of the services, programs, or activities of a public entity” by

reason of his disability. Velez and Cisrow learned that Plaintiff

had renewed his ground-floor medical restriction but there is no

evidence they knew Plaintiff could not walk down the stairs using

his cane. Plaintiff asserts only that being on the second-floor

caused pain when he had to climb the stairs and that it took him

longer to walk to the first-floor than other inmates, which made

him last in line for shared services, like using the phone,

showers, and getting meals. Plaintiff offers no evidence that he

made Velez, Cisrow or Schemelia, or anyone else, aware that

climbing the stairs caused him pain that could not be controlled

by his medication or that being on the second floor had prevented

him from participation in any service or program.

Further, there is no evidence that Cisrow and Velez knew

Plaintiff would be precluded from the NJSTEP program based on their

failure to immediately transfer him to a ground-floor cell; his

participation in the NJSTEP program was the reason Plaintiff was

transferred out of his ground-floor in the first place. Without

context that would allow a reasonable juror to conclude Plaintiff

was referring to Cisrow and/or Velez, Plaintiff testified that

after the January 16, 2015 incident with Inmate Barlow “for

whatever reason, they didn't want me in the program. They wouldn't

let me go back.” (Marshall-Otto Cert., Ex. B, Dkt. No. 172-3 at

85.) Further, Plaintiff testified that he spoke to a lieutenant

about returning to the program “and he told me … I had to wait

until the supervisor of education contacted me on it.” (Id.) In

fact, Plaintiff testified that he never learned why he was not

returned to the NJSTEP program at SWSP, but he was in the program

after his transfer to NJSP. (Id. at 104.) Plaintiff has not

presented a disputed issue of material fact that deliberate

indifference to his medical need for a ground-floor housing

restriction resulted in his exclusion from participation in a

program or service of the prison.

Plaintiff has also failed to establish deliberate

indifference by virtue of Schemelia’s act of housing Plaintiff in

a second-floor cell for two nights, because he did not see any

record of Plaintiff’s ground-floor housing medical restriction.

Without knowledge that the medical department issued Plaintiff a

ground-floor housing restriction due to his back disorder, there

is no evidence that Schemelia knew he was depriving Plaintiff of

the ability to participate in activities on the ground-floor, nor

did Plaintiff’s use of a cane put Schemelia on notice that

Plaintiff could not climb stairs to reach services offered on the

ground-floor. As with Velez and Cisrow, Schemelia was not in

control of Plaintiff’s ability to participate in the NJSTEP

program, the undisputed evidence shows the decision was in the

hands of the supervisor of education, and there is no evidence the

supervisor of education precluded Plaintiff from participation by

reason of his back disorder. Therefore, the DOC Defendants are

entitled to summary judgment on Plaintiff’s Title II, ADA claims.

I. Remaining Federal Claims Against John/Jane Doe

Defendants Are Dismissed

“The case law is clear that ‘[f]ictitious parties must

eventually be dismissed, if discovery yields no identities[.]’”

Hindes v. F.D.I.C., 137 F.3d 148, 155 (3d Cir. 1998) (quoting

Scheetz v. Morning Call, Inc., 130 F.R.D. 34 , 37 (E.D. Pa. 1990)).

The discovery period has expired and it has been approximately

three years since Plaintiff filed his amended complaint, naming

John and Jane Doe Defendants. The Court will grant summary judgment

or judgment on the pleadings to the named defendants on all federal

claims. Therefore, it is appropriate, at this time, to dismiss the

federal claims against the John and Jane Doe Defendants, pursuant

to Federal Rule of Civil Procedure 21. See Blakeslee v. Clinton

Cty., 336 F. App'x 248, 250 (3d Cir. 2009) (district court may, at

any time, add or drop a party on just terms).

V. CONCLUSION

For the reasons discussed above, the Court grants the NJDOC

Defendants’ motion for judgment on the pleadings and for summary

judgment on Plaintiff’s § 1983 and ADA claims under Title II. As

discussed in the companion Opinion on the Medical Defendants’

motion for summary judgment, the Court will decline supplemental

jurisdiction over Plaintiff’s state law claims in the absence of

Plaintiff’s showing of good cause for not timely serving the

remaining defendants.

An appropriate order follows.

Date: March 18, 2021

s/Renée Marie Bumb

RENÉE MARIE BUMB

United States District Judge

6 See Judicial Vacancies, available at

https://www.uscourts.gov/judges-judgeships/judicial-

vacancies/judicial-emergencies (last visited March 9, 2021).